People v Cusack (Rose)

[*1] People v Cusack (Rose) 2012 NY Slip Op 50299(U) Decided on February 15, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 15, 2012
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., NICOLAI and MOLIA, JJ
2010-768 S CR.

The People of the State of New York, Respondent,

against

Rose Cusack, Appellant.

Appeal from a judgment of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.), rendered October 5, 2009. The judgment convicted defendant, after a nonjury trial, of changing the occupancy or use of her building to one inconsistent with the last issued certificate of occupancy.

ORDERED that the judgment is reversed, on the law, the information is dismissed, and the fine, if paid, is remitted.

After a nonjury trial, the District Court found defendant guilty of changing the occupancy or use of her building to one inconsistent with the last issued certificate of occupancy (Code of the Town of Islip § 68-25 [B] [1]). The information charging defendant with changing the occupancy or use of her building to one inconsistent with the last issued certificate of occupancy is jurisdictionally defective and, consequently, the accusatory instrument must be dismissed.

Section 68-25 (B) (1) prohibits changing the occupancy or use of a building: "erected or altered that is not consistent with the last issued certificate of occupancy for such building unless a permit is secured. In case of an existing building, no change of occupancy that would bring it under some special provision of this ordinance shall be made unless the Building Director upon inspection, finds that such building conforms substantially to the provisions of this ordinance with respect to the proposed new occupancy and use, and issues a certificate of occupancy therefor."[*2]
In the accusatory instrument, the complainant averred, based upon personal knowledge, information and belief, that defendant "did maintain a single family dwelling as a multiple family dwelling . . . notwithstanding the fact that the premises is currently certified as a one family dwelling as per the last issued certificate of occupancy." However, the complainant's averment that defendant "did maintain a single family dwelling as a multiple family dwelling" does not establish the necessary element that the building was "erected or altered," and there are no allegations that the alleged change of occupancy of use was under some special provision (People v Caravousanos, 2 Misc 3d 7, 10-11 [App Term, 9th & 10th Jud Dists 2003]; see People v Cullen, 195 Misc 2d 692 [App Term, 9th & 10th Jud Dists 2003]; cf. People v M. Santulli, LLC, 28 Misc 3d 136[A], 2010 NY Slip Op 51449[U] [App Term, 9th & 10th Jud Dists 2010]; People v Anmar Realty, LLC, 26 Misc 3d 144[A], 2010 NY Slip Op 50423[U] [App Term, 9th & 10th Jud Dists 2010]).

Accordingly, the judgment of conviction is reversed and the information is dismissed.

In view of the foregoing, we pass on no other issue.
Iannacci, J.P., Nicolai and Molia, JJ., concur.
Decision Date: February 15, 2012